Property & Estates Flashcards
Joint Tenancy
Two individuals own equal shares
Right of survivorship
Joint Tenancy - Creation
TTIP
T – at the same time
T – by the same title (doc)
I – with identical, equal interests
P – with rights to possess the whole
Modern law also requires that the grantor clearly express the right of survivorship
Joint Tenancy - Severance - Sale
Sale - Transferee takes as tenant in common, JT intact between non-transferring JTs
Joint Tenancy - Severance - Partition
Voluntary agreement to end
Physical division or forced sale
Joint Tenancy - Severance - Mortgage
Lien Theory - Most states, mortgage doesn’t pass to other JT
Title Theory - Title is in the mortgage, passes to other JT
Tenancy by the Entirety
Marital estate, right of survivorship
Created presumptively in conveyance to married partners
Tenancy by the Entirety - Creditor Protection
Creditors of only one spouse cannot touch
Tenancy by the Entirety - Severance
Effective via death, divorce, mutual agreement, or execution by joint creditor
Tenancy in Common
Co-tenants with individual parts and right to possess whole, no right of survivorship, doesn’t have to be equal shares
Co-Tenant Rights and Duties - Possession
Right to possess all, no exclusive possession. Cannot rely on adverse possession.
Co-Tenant Rights and Duties - Ouster
When co-tenant wrongfully excludes another from possession of whole or any part; actionable wrong
Co-Tenant Rights and Duties - Rents/Profits
Co-tenant in exclusive possession is not liable to others for rent, but must share net profits gained from exploitation of land (mining)
Co-tenant who leases part must provide co-tenants with their fair share of rental income
Co-Tenant Rights and Duties - Costs
Each pays fair share of tax, mortgage, and interest costs
Can seek contributions for reasonable, necessary repairs with notice, based on fair share
Co-Tenant Rights and Duties - Unilateral Improvements
No contribution required
At partition, improver gets credit equal to value they caused or debt equal to decrease in value they caused
Co-Tenant Rights and Duties - Waste
Voluntary – willful destruction
Permissive – neglect
Ameliorative – unilateral change that increases value
Co-Tenant Rights and Duties - Partition
Each has right to bring action to dissolve agreement
Partition in kind (division) or forced sale
Co-Tenant Rights and Duties - Encumbering
May encumber own interests, but not co-tenants
Landlord-Tenant - Tenancy for Years
Known, fixed period of time that terminates on a known date
Must be in writing if 1 year+
Can be terminated on breach
Landlord-Tenant - Periodic Tenancy
Continues for intervals until party gives notice of termination (written notice in time intervals)
Express creation: “L to T from month to month”
Landlord-Tenant - Periodic Tenancy - Implied Creation
Implied creation: Land lease with no duration but with rent at set intervals, oral term of years in violation of SoF, hold over of tenant who stayed
Landlord-Tenant - Tenancy at Will
No fixed period, terminable by either party
Created by express agreement lease can terminate at any time
If “at will” right only given to landlord, one is implied for tenant
Terminated at will, most states require notice + time to vacate
Landlord-Tenant - Tenancy at Sufferance
When tenant wrongfully holds over
This allows landlord to recover rent, only until landlord evicts or new lease
Landlord-Tenant - Hold Over Doctrine
If tenant continues to possess after right ended, landlord can evict or bind tenant to new periodic tenancy (based on rent payment times)
Tenant, by holding over, acquiesces to any new terms w/ notice
Landlord-Tenant - Tenant Duties
Repair (maintain, routine)
Waste (voluntary, permissive, ameliorative)
Pay rent (possession: evict or sue, no self help; no possession: surrender, hold responsible, or relet)
Leasehold condemnation (tenant liability extinguished and leasee gets compensation)
Landlord-Tenant - Landlord Duties
Deliver Possession
Covenant of Quiet Enjoyment
Landlord-Tenant - Landlord Duties - Covenant of Quiet Enjoyment
Tenant has right to quiet use/enjoyment
Breach by wrongful eviction (actual: excluded, terminates obligation to pay rent; partial: part, relieved from rent payment)
Breach by constructive eviction (substantial interference [chronic/perm], notice from T to L, and T vacates) (T can seek damages) (doesn’t apply if wrongful act by other tenant)
Landlord-Tenant - Landlord Duties - Warranty of Habitability
Premises is fit for human habitation; non-waivable
Tenant can move out and terminate lease, make reasonable repairs and deduct from rent, reduce/withhold rent in escrow, or seek money damages.
Landlord-Tenant - Landlord Duties - Latent Defect
Landlord knows of thing tenant can’t discover, must disclose
Failure to disclose > liability for any injury from condition
Landlord-Tenant - Landlord Duties - Antidiscrimination
No discrimination in sale or rental, negotiate, loan, etc.
Unlawful to do ads that indicate discriminatory preference
Exemptions: except for ads, doesn’t apply to owner-occupied buildings with less than 4 units AND homes by owner w/ <3 homes
Landlord-Tenant - Landlord Duties - Disability
Reasonable accommodations – Must permit or make them for disability
Landlord-Tenant - Transfer of Leaseholds - Tenant
Tenant may freely transfer interest unless prohibited by lease
If approval required, once landlord consents to one transfer, landlord cannot object to future transfers by that tenant unless reserved right
Landlord-Tenant - Transfer of Leaseholds - Tenant to Assignee
Assignee stands in shoes of OG tenant in direct relationship with landlord (privity)
Assignment transfers the entire remaining term of the lease
Original tenant remains liable on the original contractual obligations
Landlord-Tenant - Transfer of Leaseholds - Tenant to Subleasee
Tenant of OG lessee and pays rent to lessee
Tenant retained part of remaining term; sublessee has no privity
Sublessee cannot enforce covenants (other than habitability)
Landlord-Tenant - Transfer of Leaseholds - Covenants
Covenants run with land if OG parties intended and it touches and concerns
This requires it to benefit landlord and burden tenant or vice-versa
Landlord-Tenant - Transfer of Leaseholds - Landlord
Landlord may assign rents and reversion interest they own (deed); no tenant consent required
After notice, T must recognize and pay new owner as landlord
Landlord-Tenant - Transfer of Leaseholds - Landlord - Covenants
Benefit of T covenants or burdens of L covenants that touch and concern run with estate to new owner
OG landlord still liable for all covenants in lease (unless novation subs parties to the contract
Landlord-Tenant - Transfer of Leaseholds - Landlord - Tort Liability
Common law norm is for tenant to beware, L no duty to make premises safe (except common areas, latent defects, public spaces, or short term of furnished dwelling)
Modern trend is duty of reasonable care, liable for ordinary negligence if L had notice and opportunity to repair
Easements - Defined
Grant of nonpossessory interest that entitles holder to use/enjoyment of others land
Presumed to be perpetual unless grant expressly limits interest
Affirmative or negative
Easement Appurtenant
Benefits its holder in use/enjoyment of own land
Involves a dominant and servient tenement (land parcels)
Passes automatically with transfers of dominant tenement and of servient estate (unless new owner BFP w/o notice of easement)
Easement in Gross
Personal advantage unrelated to use/enjoyment of land
Servient land burdened, no benefited land (billboard example)
Not transferrable unless for commercial purposes
Easement - Creation - Express
Requires: memorialized in writing and signed by holder of servient land unless duration brief enough to be outside SoF
Easement - Creation - Prescription
Open and notorious, adverse, continuous & uninterrupted for period.
Essentially adverse possession, but possession need not be actual and exclusive
Easement - Creation - Implication
Implied from preexisting use: Quasi-easement (use on servient part was apparent & continuous AND parties expected use would survive division bc necessary)
Implied without existing use:
Subdivision (implied easements for streets to access lots)
Profit a prendre (implied easement to extract resources)
Easement - Creation - Necessity
When a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land.
Easement - Termination
ENDCRAMP
Estoppel (servient owner materially changes position in reliance on oral)
Necessity (necessity ends unless an express grant)
Destruction (destruction of servient land)
Condemnation (by gov)
Release (given by easement holder)
Abandonment (action intent to never use again)
Merger (title to easement and servient land are vested in one person)
Prescription (servient owner interferes via adverse possession)
Easement - Profits
Privilege to enter land and take resources
Rules governing creation, alienation, and termination of easements applies
Can be extinguished through overuse (surcharge)
Easement - License
Privilege to enter another’s land for a specific purpose; revocable at will
Personal to the licensee (inalienable, cannot be transferred)
No writing needed (failed attempt to create easement creates license)
Freely revocable unless estoppel applies (invested money/labor in reliance)
Restrictive Covenants - Defined
Written promises to do or not do something related to land
If money damages > promise is covenant (vs equitable servitude)
Restrictive Covenants - Successors to Burdened Estate
Bound as if they agreed if: Writing, intent (OG parties intended to run), touches and concerns land, horizontal and vertical privity, and notice
Privity: non-hostile relationship between OG parties (horiz.) and successor and OG (vertical)
Restrictive Covenants - Successors to Benefited Estate
Bound as if they agreed if: Writing, intent (OG parties intended to run), touches and concerns land, and vertical privity
Equitable Servitudes - Defined
Promise that equity will enforce against successors of burdened land unless successor is a BFP (purchaser for value w/o notice)
Equitable Servitudes - Creation
Created by writing (SoF), intent for enforcement successors, touch and concern land, and notice (actual, inquiry, or record of covenant)
Equitable Servitudes - Implied
General Common Scheme Doctrine
Court will apply to hold unrestricted lot holder to common scheme
Requires a general scheme of residential development + notice
Equitable Servitudes - Defenses
Neighborhood conditions changed > enforcement is inequitable
Unclean hands > Person seeking enforcement is violating on land
Acquiesced > Benefited party allowed violation by burdened party
Estoppel > Benefited party acted so reasonable person would believe covenant was abandoned or waived
Laches > Benefited party fails to bring suit in reasonable time
Termination by written release, merger, or condemnation
Adverse Possession - Defined
Possession for time can ripen into title bc statute of limitations for ejectment
Adverse Possession - Requirements
Continuous – Continuous (as owner would do) possession
Open and notorious – Sufficiently apparent to true owner
Actual and exclusive – Gain title to land they actually occupy & not sharing (will get full land if entered under color of title)
Hostile - no permission (disability > will not run at inception of disability)
If AP user violates recorded covenant for period, they take free of real covenant
Fixtures Zoning - Variance
Permission to depart from zoning restrictions
Must show undue hardship and no diminution to neighbor property values
Fixtures Zoning - Cumulative Zoning
Creates a hierarchy of uses of the land (rank and categorized)
Land may be used for that purpose and any higher use
Fixtures Zoning - Noncumulative Zoning
Land may be used only for the purpose for which it is zoned
Fixtures Zoning - Special Use
Must be obtained even though zoning is proper bc of safety (hospitals, funeral homes, etc.)
Condos/HOAs
Each owner owns unit + undivided interest in exterior and common parts
Own home in fee simple, own area outside tenant-in-common
HOAs – Each owner a member, board oversees common elements
Rights Incidental to Ownership
Owner has exclusive right to use/possess surface, airspace, and soil of property
Rights Incidental to Ownership - Lateral Support
Right to have land supported in natural state by adjoining land
Landowner strictly liable if their excavation causes others’ land to slide
If excavation causes improved land (buildings) to cave in > liable if negligent
Rights Incidental to Ownership - Water Rights
Riparian Doctrine – Water belongs to those who own land bordering (use enjoinable if substantial interference)
Prior Appropriation Doctrine – Water belongs to state, rights through use
Groundwater – Surface owner can make reasonable use of groundwater
Surface water – Landowner can use for any purpose they desire
Rights Incidental to Ownership - Right to Exclude Others
Possessor can exclude others and get remedy for invasions (trespass, private nuisance, continuing trespass)
Ejectment to remove trespasser/tenant (can get money damages)
Title - Conveyance Requires
Conveyance of real estate requires a land contract (equitable title) + deed (legal title)
Title - Land Contract
Conveys equitable title, and endures until the deed
Requires a marketable title; if closing happens w/o, no suit
Title - Closing
Deed passes legal title and becomes the operative doc
Gap between these steps is the escrow period
A deed, once it has been delivered, is evidence of title, and its destruction does not cause any change in the title.
To transfer title, must to deliver a new deed transferring title
Title - Deed Requirements
(1) in writing (2) sufficiently describe land (3) identify grantor and grantee (4) evidence intent to convey and (5) be signed
Inaccurate description of land > specific performance, reduction in price
Oral contract enforced if two acts of partial performance (possession, payment, or improvements)
Title - Doctrine of Equitable Conversion
After land contract signed, equity regards buyer as owner of real property, buyer has risk of loss
At closing, seller conveys legal title (giving right to possession)
Title - Promises in Conveyance - List
Marketable title
No false statements
No implied warranties (fitness or habitabiltiy)
Title - Promises in Conveyance - False Statement
Seller liable to purchaser after closing for defects if false statement buyer relied upon, actively concealed defect, or failed to disclose
Seller must have known or had reason to know of defect; realize buyer is unlikely to discover defect; and defect serious enough that buyer would reconsider
Title - Promises in Conveyance - Marketable Title
Seller will provide marketable title on day of closing
Unmarketable title: defects in record chain of title (like adverse possession), encumberances (mortgages, liens, easements, etc.), zoning violations, and future interest holders unborn/unascertained, doubt from lawsuits, litigation, etc.
If unmarketable, buyer must notify seller and give time to cure
Seller can use proceeds of sale to clear if buyer protected
Title - Performance
Buyer’s obligation to pay and seller’s obligation to convey are concurrent. Neither party in breach until other tenders performance.
Title - Remedy for Breach
Damages or (for unique land) specific performance
Title - Closing
If buyer permits closing, contract merges with deed and seller only liable for deed promises.
Deed must be executed and delivered (writing signed, description of land, ID of parties, words of intent to transfer)
Title - Covenant for Title
Deeds used to convey property interest
Title - Covenant for Title - General Warranty Deed
Warrants against defects in title on behalf of self and on behalf of predecessors in interest
Covenant of seisin (grantor owns), right to convey, against encumbrances, quiet enjoyment (no third party claim of title), warranty (defend against title claims/compensate for loss), assistance (help perfecting title)
First three are breached at delivery if ever (SoL starts to run), other three are breached when grantee is disturbed.
Title - Covenant for Title - Special Warranty Deed
Warrants against defects in title, but only on behalf of self
Covenant of seisin (grantor owns), right to convey, against encumbrances, quiet enjoyment (no third party claim of title), warranty (defend against title claims/compensate for loss), assistance (help perfecting title)
Title - Covenant for Title - Quitclaim Deed
Conveys only what the grantor has at the time of the conveyance. Grantor isn’t even promising he has title to convey
Recording Statutes - Race Jurisdiction
Whoever records first
Recording Statutes - Notice Jurisdiction
Last BFP to take wins
“without notice thereof, unless the conveyance is recorded.”
Recording Statutes - Race-Notice Jurisdiction
B wins if B is a BFP and he records properly before A
Subsequent purchaser must not have had notice of prior grant
“without notice thereof, whose conveyance is first recorded.”
Recording Statutes - Bona Fide Purchaser
Purchaser for value without notice (actual, record, or inquiry)
Recording Statutes - Bona Fide Purchaser - Shelter Rule
Anyone who takes from a BFP will prevail against any interest BFP would have prevailed against
Recording Statutes - Chain of Title
Purchaser must record the deed properly within the chain of title
Wild Deed - When a recorded deed is not connected to chain of title, it is incapable of giving record notice. Same as not recording at all.
Recording Statutes - Chain of Title - Estoppel by Deed
One who conveys something in which they have no interest is estopped from denying validity of conveyance if they eventually get the title they had purported to transfer
Mortgages - Parties defined
Borrower (mortgagor) gives the lender (mortgagee) a mortgage on property to secure debt
Mortgages - Process
Involves a promissory note (mortgagor’s personal obligation) + mortgage (agreement that land can be sold to pay mortgagee)
Mortgages - Purchase Money Mortgage
Extension of value who takes a security interest in the real estate that its loan enabled the mortgagor to acquire
Mortgages - Transfer by Mortgagor
Can transfer interest by indorsing note and delivering to transferee or executing a separate document of assignment
If grantee assumes mortgage, they are now personally liable to lender
If grantee takes subject to mortgage, no personal liability but land can be foreclosed
Mortgages -Transfer by Mortgagee
Can freely transfer the note, mortgage follows properly transferred note
If recorded, mortgage sticks with the land; though, recording statutes apply
Mortgagee can foreclose only via proper judicial proceedings
Mortgages - Foreclosure
Each claimant entitled to full satisfaction before a junior lienholder may take
Foreclosure terminates interests junior to the mortgage being foreclosed, not senior
Junior lienholders can proceed for deficiency judgement against debtor
Mortgages - Foreclosure - Priority of Interests
- Expenses of Sale
- Principal and accrued interest on loan
- Junior Lienors
- Mortgagor
Mortgages - Foreclosure - Who is First?
First in time, first in right – Creditor who records first takes first
Senior interests: Receive NO proceeds but remain on property
Mortgages - Foreclosure - What does foreclosure buyer take?
A buyer at a foreclosure sale takes the title as it existed when the foreclosed mortgage was placed on the property.
All interests senior to that one remain on the property, and all interests junior to that one are extinguished.
Mortgages - Foreclosure - Statutory Redemption
Mortgagor can recover land after sale by paying sale price
Mortgages - Foreclosure - Necessary Parties
All junior lienholders and debtor
Jr mortgagee must be named bc it has the right to pay off the senior mortgage to avoid being wiped out by foreclosure
Failure to include party > preservation of that claim on the land
Present Possessory Interests - Fee Simple Absolute
“To A” or “To A and her heirs”
Absolute ownership of potentially limitless duration
Devisable, descendible, and alienable
Present Possessory Interests - Fee Simple Determinable
“To A so long as the property is used for farming”
Terminates upon happening of stated event; automatically reverts to grantor
Created by clear durational language limiting duration of estate
Devisable, descendible, and alienable
Absolute restraints on transfer are void
Future interest: Reverter in grantor
Present Possessory Interests - Fee Simple Subject to Condition Subsequent
“To A, but if the land is used for something other than corn then O retains the right of entry.”
Grantor can take action to terminate estate upon happening of event
Created by use of conditional language + explicit right to reenter
Future interest is right of reentry (not transferrable)
Present Possessory Interests - Fee Simple Subject to Executory Interest
“To A, but if X, then to B”
Terminates upon happening of stated event and passes to third party
Created by a condition + grant to third party
Future interest is shifting executory interest
Present Possessory Interests - Life Estate
“To A for life”
Measured by the live or lives of persons, never in years
Future interest:
If held by O > Reversion
If held by third party > Remainder
Present Possessory Interests - Life Estate Pur Autre Vie
Measured by life other than grantees
“To A for the life of B” or if life tenant conveys life estate to another
Present Possessory Interests - Life Estate - Restrictions on Tenant
Entitled to all ordinary uses and profits, but cannot commit waste
Voluntary (depletion of resources if necessary, suitable only for that, or permitted) (open mines doctrine: if done prior, can mine in open mines)
Permissive (preserve land, pay taxes, pay interest on mortgage)
Ameliorative (future interest holders must consent)
Future Interests - Possibility of Reverter
Accompanies fee simple determinable
Held by O
Automatically reverts to grantor upon event
Future Interests - Right of Reentry
Accompanies Fee Simple subject to Condition Subsequent
Held by O
Grantor must exercise his right of entry
Future Interests - Reversion
When grantor conveys estate of lesser than what they own (duration)
Held by O
Future Interests - Contingent Remainders
Created in unborn/unascertained persons or subject to a condition precedent
Future Interests - Remainders Generally
Must be expressly created in the instrument creating the preceding estate
Think of it as: social (always accompany a preceding estate of known, fixed duration) and polite (never cuts short or divests prior taker)
Future Interests - Vested Remainder
Created in an existing/ascertained person and no condition precedent
Future Interests - Vested Remainder - Indefeasibly Vested
Not subject to divestment or diminution
Holder is certain to acquire without any conditions attached
Creation: “To A for life, remainder to B.”
Future Interests - Vested Remainder - Vested Remainder Subject to Total Divestment
Subject to a condition subsequent
Creation: “to A for life, then to B and his heirs; but if B dies unmarried, then to C and his heirs.”
Future Interests - Vested Remainder - Vested Remainder Subject to Open
Created in a class of persons
Will become possessory but can be diminished by more people
Creation: “To A for life, then to B’s children.”
Class closes when some member can demand possession
Future Interests - Executory Interests - Shifting
Cuts short interest of someone other than grantor
Follows a defeasible fee, cuts short someone other than grantor
Creation: “To A, but if B returns from Canada, to B and his heirs.”
B has shifting, bc he cuts off A if he returns
Future Interests - Executory Interests - Springing
Cuts short interest of grantor
Creation: O conveys: “To A, if and when she becomes a lawyer.”
Rule Against Perpetuities
Future interests are void if there is any possibility that the interest may come to bear (vest) more than 21 years after a person alive at the time has died
Violation of the rule destroys only the offending interest
Steps: determine future interest, what must happen for them to take, find a measuring life (connected to vesting), and when the future interest holder can take (possessory, indefeasibly vested remainder, or vested remainder subject to total divestment)
Rule Against Perpetuities - Classes
If the interest of any class member may vest too remotely, the whole class gift fails (vesting = class closed and all conditions satisfied)
Rule Against Perpetuities - Reform
Wait and See – Wait for measuring life to end and then look to see who takes
USRAP: Codifies RAP and provides for alternative 90-year vesting period
Cy Pres Doctrine – Court changes nonconforming interests to match intent
Restraints on Alienation
Any restriction on the transferability of a legal (not equitable) interest is void.
Disabling (transfers are ineffective) > VOID
Forfeiture (transfer forfeits interest) > valid if reasonable/time-limits
Promissory (transfer breaches covenant) > valid if reasonable/time-limits
Discriminatory (based on race, religion, ethnicity) > VOID
